Opinion
No. 10-06-00137-CR
Order issued and filed September 26, 2007. DO NOT PUBLISH.
On Appeal from the 361st District Court, Brazos County, Texas, Trial Court No. 05-02646-CRF-361.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
ABATEMENT ORDER
Kevin Dwayne Revell has filed a motion to abate his appeal for correction and supplementation of the reporter's record. Revell identifies the following deficiencies in the original reporter's record (containing six volumes) and the supplemental reporter's record (containing two volumes) currently on file:
• the original reporter's record misidentifies the trial court judge;
• Revell's name is misspelled (apparently on the cover pages for volumes 3-5 of the original reporter's record);
• volume 5 of the original reporter's record misidentifies defense counsel during closing arguments;
• no mention is made in the reporter's record of one of Revell's attorneys;
• the cover sheet and table of contents for volume 5 of the original reporter's record provide the wrong date for the punishment phase;
• no voir dire transcription;
• no transcription of any in-court proceedings related to three jury notes to the court during deliberations; and
• the court reporter who prepared the original reporter's record listed three different dates for when her court reporter's certification would expire.The State has not filed a response to Revell's motion. We will grant the motion and abate the appeal for a hearing to determine the accuracy of the reporter's record. It is beyond question that an accurate record is essential to secure a criminal appellant's right to due process. See Mayer v. City of Chicago, 404 U.S. 189, 193-95, 92 S. Ct. 410, 414-15, 30 L. Ed. 2d 372 (1971) (due process requires "`a record of sufficient completeness' to permit proper consideration of [an appellant's] claims") (quoting Draper v. Washington, 372 U.S. 487, 499, 83 S. Ct. 774, 780, 9 L. Ed. 2d 899 (1963)); accord M.L.B. v. S.L.J., 519 U.S. 102, 110-12, 117 S. Ct. 555, 561, 136 L. Ed. 2d 473 (1996). In addition, the appellate rules applicable to the clerk's and reporter's records are intended "to create an accurate record on appeal." Lomax v. State, 153 S.W.3d 582, 584 (Tex.App.-Waco 2004, order) (per curiam) (quoting Blondett v. State, 921 S.W.2d 469, 477 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd)); accord Amador v. State, 221 S.W.3d 666, 677 (Tex.Crim.App. 2007) ("Rule 34.6 . . . ensures that the record on appeal accurately reflects" the trial proceedings). We are not satisfied that every error and omission identified by counsel poses the potential for a fatal blow to Revell's appeal or his right to due process, but we will identify two which the trial court should pay particular attention to. First, Revell complains that there is no transcription of the voir dire included in the original or supplemental reporter's record on file with this Court. Revell's counsel filed a written pretrial motion requesting that the court reporter make a record of, among other things, "[t]he entire voir dire examination of the jury panel during the trial of this cause on the merits." After conviction, Revell's request for preparation of the reporter's record specifically included a request that "[v]oir dire of jury venire, including objections of counsel and the ruling and remarks of the Court thereon" be included in the reporter's record. It cannot be determined from the record currently on file in this Court whether the court reporter was actually present and made a record of the voir dire proceedings. If the court reporter was present and made a record of the voir dire proceedings, that record must be transcribed and filed in a supplemental reporter's record so Revell can pursue any Batson claims or other challenges involving the jury selection process. Second, Revell complains that there is no transcription of any in-court proceedings related to three jury notes to the court during deliberations. The clerk's record contains two notes the presiding juror sent to the court with regard to the deadly weapon special issue and a third note regarding punishment. As with voir dire, counsel requested in the pretrial motion that the court reporter make a record of "[a]ll communications between the Court and the Jury during the guilt/innocence hearing and the punishment hearing," all objections by the State or defense, and all rulings by the court on those objections. It cannot be determined whether the court reporter was present when the trial court responded to these notes. Nor does the record contain any indication of how the trial court responded to the notes or whether either party objected to these responses. Article 36.27 of the Code of Criminal Procedure establishes the procedures a court should follow when it receives a jury note. See TEX. CODE CRIM. PROC. ANN. art. 36.27 (Vernon 2006). In particular, article 36.27 provides, "All such proceedings in felony cases shall be a part of the record and recorded by the court reporter." Id. Therefore, we grant Revell's motion to abate the appeal for a hearing to determine the accuracy of the reporter's record. See TEX. R. APP. P. 34.6(e)(3); Lomax, 153 S.W.3d at 586-87. We have identified two particular omissions which the court must address in determining the accuracy of the record. Nevertheless, the court may within its discretion address any other deficiencies or inaccuracies which Revell or the State may call to the court's attention. See Lomax, 153 S.W.3d at 586. If the court finds that the reporter's record is inaccurate, then the court shall sign a written order reflecting this finding and ordering the court reporter to (1) prepare a corrected or supplemental record which "conform[s] . . . to what occurred in the trial court" and (2) file it with the Clerk of this Court. See TEX. R. APP. P. 34.6(e)(2); Lomax, 153 S.W.3d at 586. If the court finds that the record is accurate, then the court shall sign a written order to that effect. See Lomax, 153 S.W.3d at 586. Regardless of whether the court orders a correction or supplementation of the reporter's record, the district clerk is ordered to file a supplemental clerk's record containing a copy of the court's order(s) with the Clerk of this Court. See TEX. R. APP. P. 34.5(c); Lomax, 153 S.W.3d at 587. If necessary to any issue on appeal, unless the parties waive the making of a reporter's record in the abatement hearing, the court reporter is ordered to prepare and file a supplemental reporter's record of the abatement hearing with the Clerk of this Court. See TEX. R. APP. P. 13.1(a), 34.6(d); Lomax, 153 S.W.3d at 587. This is not the first time that this Court has had to abate Revell's appeal because of problems with the reporter's record. See Revell v. State, No. 10-06-00137-CR (Tex.App.-Waco Feb. 7, 2007, order) (not designated for publication) (abating appeal due to untimely reporter's record). In addition, the official court reporter for the trial court has changed since Revell's trial. Despite these other problems which have contributed to a significant delay in the resolution of Revell's appeal, it is imperative that there be an accurate reporter's record for the appeal. See Mayer, 404 U.S. at 193-95, 92 S. Ct. at 414-15; see also Amador, 221 S.W.3d at 677; Lomax, 153 S.W.3d at 584; Blondett, 921 S.W.2d at 477. The trial court shall conduct the hearing within thirty (30) days after the date of this order. The trial court clerk and the court reporter shall file supplemental records within forty-five (45) days after the date of this order. See Lomax, 153 S.W.3d at 586-87. Revell has already filed an appellant's brief. Nevertheless, recognizing that additional issues may come to light after the trial court determines the accuracy of the reporter's record, Revell shall have fifteen (15) days after the supplemental records are filed in this Court to prepare a supplemental or amended brief presenting any additional issues. The State's brief will be due thirty (30) days after Revell's supplemental or amended brief is filed or after the expiration of the fifteen-day period, whichever occurs first.
The original quotation is from Coppedge v. United States, 369 U.S. 438, 446, 82 S. Ct. 917, 921, 8 L. Ed. 2d 21 (1962).
Revell has had several lawyers. His first trial counsel filed the motion for the court reporter to record certain designated proceedings. Revell retained other counsel to represent him at trial after a pretrial fee dispute with his first attorney. The trial court found Revell indigent after conviction. The first attorney appointed for the appeal had to withdraw due to a conflict, so the court appointed another attorney who continues to represent Revell in this matter.
Volume 1 of the original reporter's record is the master index. See UNIF. FORMAT MANUAL FOR TEX. CT. REPORTERS § 17.1 (2003). Volume 2 includes a "jury coordinator's" reference to an unidentified juror's potential work conflict and contains the trial court's rulings on the parties' motions in limine, all being addressed "outside the presence of the jury."
The original reporter's record was filed on March 15, 2007.